Jewish forms of
Government: the interplay of "Church and State"

Jewish Roots of American
Constitution

by Professor Paul Eidelberg

Introduction

Although many of the framers of the American Constitution were not
devout, their political mentality was shaped in universities whose
curriculum was based very much on Jewish ideas. Accordingly, this essay
will be divided into three parts. The first part will show how Judaism,
in particular the Five Books of Moses, influenced higher education in
17th and 18th century America. The second part will examine the
institutions prescribed in the American Constitution and show their
roots in Jewish laws and principles.

A. Historical Background.[1]

1. No nation has been more profoundly influenced by the “Old Testament”
than America. Many of America’s early statesmen and educators were
schooled in Hebraic civilization. The second president of the United
States, John Adams, a Harvard graduate, had this to say of the Jewish
people:

The Jews have done more to civilize men than any other nation…. They
are the most glorious Nation that ever inhabited the earth. The Romans
and their Empire were but a bauble in comparison to the Jews. They have
given religion to three-quarters of the Globe and have influenced the
affairs of Mankind more, and more happily than any other Nation,
ancient or modern.[2]

2. The curriculum at Harvard, like those of other early American
colleges and universities, was designed by learned and liberal men of
“Old Testament” persuasion. Harvard president Increase Mather
(1685-1701) was an ardent Hebraist (as were his predecessors, Henry
Dunster and Charles Chauncey). Mather’s writings contain numerous
quotations from the Talmud as well as from the works of Saadia Gaon,
Rashi, Maimonides and other classic Jewish commentators.

3. Yale University president Ezra Stiles readily discoursed with
visiting rabbinical authorities on the Mishna and Talmud. At his first
public commencement at Yale (1781), Stiles delivered an oration on
Hebrew literature written originally in Hebrew. Hebrew and the study of
Hebraic laws and institutions were an integral part of Yale’s as well
as of Harvard’s curriculum.

4. Much the same may be said of King’s College (later Columbia
University), William and Mary, Rutgers, Princeton, Dartmouth, and Brown
University. Hebrew learning was then deemed a basic element of liberal
education. Samuel Johnson, first president of King’s College
(1754-1763), expressed the intellectual attitude of his age when he
referred to Hebrew as “essential to a gentleman’s education.”

5. This attitude was not merely academic. On May 31, 1775, almost on
the eve of the American Revolution, Harvard president Samuel Langdon,
addressing the Congress of Massachusetts Bay, declared: “Every nation,
when able and agreed, has a right to set up over itself any form of
government which to it may appear most conducive to its common welfare.
The civil polity of Israel is doubtless an excellent general model”
(emphasis added).

6. The Higher Law doctrine of the Declaration of Independence is rooted
in the Torah, which proclaims “The Laws of Nature and Nature’s God,"
and appeals to the “Supreme Judge" and “Providence." Even though
Jefferson, the principal author of the Declaration, was no admirer of
the Hebrew Bible, he nonetheless framed the Declaration with a view to
galvanizing a bible-reading public in support of the American Revolution

7. During the colonial and constitution-making period, the Americans,
especially the Puritans, adopted and adapted various Hebraic laws for
their own governance. The legislation of New Haven, for example, was
based on the premise that “the judicial laws of God, as they were
delivered by Moses, and as they are a fence to the moral law, being
neither … ceremonial, nor ha[ving] any reference to Canaan, shall …
generally bind all offenders, till they be branched out into
particulars hereafter." Thirty-eight of seventy-nine statutes in the
New Haven Code of 1665 derived their authority from the Hebrew Bible.
The laws of Massachusetts were based on the same premise.

8. The fifteen Capital Laws of New England included the “Seven Noahide
Laws” of the Torah, or what may be termed the seven universal laws of
morality. Six prohibit idolatry, blasphemy, murder, robbery, adultery,
and cruelty to animals, while the seventh requires the establishment of
courts of justice. Such courts are obviously essential to any society
based on the primacy of reason or persuasion rather than passion or
intimidation.

9. The seven universal laws of morality (together with their particular
branches) comprised a “genial orthodoxy. This genial orthodoxy
transcends whatever social or economic distinctions exist among men: it
holds all men equal before the law. By so doing it places constraints
on governors and governors alike and thereby habituated Americans to
the rule of law. As a further consequence, this ancient Hebraic
orthodoxy dissolved or subordinated many ethnic differences among
immigrants in the new world. It moderated the demands of various
groups, helped coordinate their diverse interests and talents, and
thereby contributed to America’s growth and prosperity.

10. Now, without minimizing the influence of such philosophers as Locke
and Montesquieu on the framers of the American Constitution, I believe
America may rightly be deemed the first and only nation that was
explicitly founded on the Seven Noahide Laws of the Torah. Indeed, the
legislation of the several states comprising the Federal Union embodied
these laws—including the prohibitions against blasphemy and
adultery—well into the nineteenth century. It should also be noted that
the constitutions of eleven of the original thirteen states made
provision for religious education. Some even had religious
qualifications for office.

B. The Institutions Prescribed by the American Constitution

1. The House of Representatives represents 435 districts of the United
States, where the people of each district elect one person to represent
their views and interests. The idea of district elections is implicit
in the Torah. “Select for yourselves men who are wise, understanding,
and known to your tribes and I will appoint them as your leaders"
(Deut. 1:13). The word “election" obviously comes from the word
“elect," and the “elect" means men of high intellectual and moral
character.

a. Exodus 18:19 states: “… seek out from among all the people men with
leadership ability, God-fearing men–men of truth who hate injustice."
Similar qualifications are prescribed in the original constitutions
Maryland, Massachusetts, New Hampshire, and Rhode Island. This is what
the word “election" means. It is not a democratic but an aristocratic
term!

b. So, each tribe must select the best men to be their representatives.
Rabbi Samson Raphael Hirsch comments that “each tribe (shevet) is to
choose out of its own midst men whose character can only be known by
their lives [hence whose character] is known only to those who have
associated with them." This is the biblical source of residential
requirements for Representatives and Senators in the United States.
Also, what is here called a shevet was called a district (pelech) after
the Second Temple.[3]

c. Moreover, the idea of district elections conforms to the Jewish law
of “agency" (Kiddushin 59a). This law synthesizes the “delegate" and
“trustee" concept of representation prevalent in the non-Jewish
democratic world. Whereas the delegate concept binds a representative
to the instructions of his constituents, the trustee concept allows him
to judge whether adherence to these instructions, when additional
knowledge or new circumstances intervene, will harm his constituents’
immediate and/or long-term interests.

d. Finally, it is a principle of Jewish law that “No legislation should
be imposed on the public unless the majority can conform to it" (Avoda
Zara 36a). This obviously requires legislators to consider or consult
the opinions of their constituents. Hence representative democracy can
be readily assimilated to Judaism simply by adding that representatives
must be “men who are wise, and understanding." This would make for a
“high-toned" or aristocratic democracy, or a universal aristocracy.
(Bear in mind that Israel is supposed to be a “Nation of Kohanim,"
meaning a nation of noblemen.)

2. The Senate. The Senate represents the 50 states of the Federal
Union; it therefore represents the Federal principle. But the idea of
federalism goes back to the Torah and the twelve tribes. Each tribe had
its own distinct identity, its own governor and its own judicial system.

3. The Presidency. Unlike Israel, which has a Plural Executive or
Cabinet consisting of a prime minister and other ministers representing
different political parties in the Knesset, the United States has a
Unitary Executive, namely, the President. Of course the President has a
Cabinet, but its members cannot hold any other office and they are
wholly responsible to the President, not to any political party.

a. Now it so happens that a Unitary Executive is a Torah principle!
Thus, when Moses told Joshua to consult theelders when he was about to
lead the Jews across the Jordan, God countermanded Moses: there can
only be one leader in a generation. And if you look at tractate
Sanhedrin 8a, you will see that Jewish law opposes collective
leadership. Nor is this all.

b. Just as a President of the United States must be a native-born
American and not a naturalized citizen, so a king of Israel must be
born of a Jewish mother and not a ger or convert.

4. The Supreme Court. Just as the American Supreme Court is the final
interpreter of the American Constitution, so the Great Sanhedrin is the
final interpreter of the Jewish Constitution, the Torah.

So we see that the American Constitution was very much rooted in Jewish
principles. Now let us consider the importance of these principles in
America’s war against international terrorism.

***********

[1] This section of this essay is based on Abraham Katsh, The Biblical
Heritage of American Democracy (New York: KTAV, 1977).

[3] Unlike Israel, 74 nations have district elections for the lower or
only branch of the legislature. In Israel the entire country
constitutes a single district, in which parties compete on the basis of
proportional representation. For a detailed analysis of Israel’s
political system, see Paul Eidelberg, Jewish Statesmanship: Lest Israel
Fall (Jerusalem: Foundation for Constitutional Democracy, 2000).